Filed 1/27/20 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM DONOVAN JOHNSON III,

Defendant and Appellant.

F077995

(Super. Ct. No. BF168908B)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant William Donovan Johnson III is currently serving a sentence following a negotiated plea agreement. At sentencing, the trial court imposed various fees, fines and assessments against him without first determining if he had the ability to pay. On appeal, appellant challenges assessments imposed under Government Code section 70373, subdivision (a)(1), and Penal Code section 1465.8, subdivision (a)(1) and a restitution fine imposed under section 1202.4, subdivision (b)(1). He raises claims of due process, equal protection, and the excessive fines clause of the Eighth Amendment. He relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We reject these assertions and affirm.

BACKGROUND

In July 2017, appellant entered a plea of no contest to a charge of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 1). He admitted two sentence enhancements under Health and Safety Code section 11370.2, subdivision (c). The following month, appellant was sentenced according to his plea agreement. He received an upper term of four years in count 1, along with two enhancements of three years each under Health and Safety Code section 11370.2, subdivision (c), for a total sentence of 10 years. A split sentence was imposed, whereby appellant would serve the first five years in jail, and the remainder of his sentence on mandatory supervision. The court imposed the following fees, fines and assessments:

1. A fine of $50.00, plus a $155.00 penalty assessment and state surcharge, pursuant to Health and Safety Code section 11372.5;

2. A fee of $100.00, plus a $310.00 penalty assessment and state surcharge, pursuant to Health and Safety Code section 11372.7;

3. A court operations assessment of $40.00 pursuant to section 1465.8, subdivision (a)(1);

4. A criminal conviction assessment of $30.00 pursuant to Government Code section 70373, subdivision (a)(1);

5. A minimum restitution fine of $300.00 pursuant to section 1202.4, subdivision (b)(1); and

6. A mandatory supervision restitution fine of $300.00 pursuant to section 1202.45, which was suspended pending completion of mandatory supervision.

In August 2018, appellant was resentenced. Following a change in law, the trial court struck the two three-year enhancements that had been imposed against him pursuant to Health and Safety Code section 11370.2, subdivision (c). Appellant received an upper term sentence in count 1 of four years. He was ordered to served 724 days in jail, with the remainder of his sentence on mandatory supervision. The previously ordered fines and fees remained in effect.

Prior to imposing the various fees, fines and assessments, the trial court did not assess if appellant had the ability to pay them.

DISCUSSION

I. Dueñas Is Distinguishable From The Present Matter And The Trial Court Did Not Violate Appellant’s Constitutional Rights.

Appellant asks this court to strike the assessments under section 1465.8, subdivision (a)(1) and Government Code section 70373, subdivision (a)(1), and stay the restitution fine under section 1202.4, subdivision (b)(1). In the alternative, he seeks a remand to the trial court for a hearing to determine his ability to pay. His assertions are based primarily on Dueñas, supra, 30 Cal.App.5th 1157.

In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. She had dropped out of high school because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1161.) As a teenager, the defendant’s driver’s license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)

After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. The court imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150 restitution fine (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161–1162.) The defendant challenged the fees and fines imposed under sections 1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The trial court rejected her constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.) On appeal, however, the Dueñas court determined that the defendant’s due process rights had been infringed. According to Dueñas, an ability to pay hearing was required so the defendant’s “present ability to pay” could be determined before assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, at p. 1164.) The Dueñas court concluded that the minimum restitution fine of $150 (§ 1202.4, subd. (b)(1)) also had to be stayed. The appellate court reached that conclusion despite section 1202.4 barring consideration of a defendant’s ability to pay unless the judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that “execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Dueñas, at p. 1164.)

We find appellant’s reliance on Dueñas unavailing. It is distinguishable from the present matter. In any event, even if Dueñas applies, appellant’s constitutional rights were not violated.

A. Dueñas is distinguishable from the present matter.

According to the Dueñas court, the defendant lost her driver’s license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as “cascading consequences” stemming from “a series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)

In contrast to Dueñas, appellant’s conviction for transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) was not a product of prior criminal conviction assessments and fines. Nothing from this record establishes or reasonably suggests that appellant was caught in an unfair cycle of incarceration. He could have avoided the present conviction regardless of his financial circumstances. Dueñas is distinguishable and it has no application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928–929 [declining to apply Dueñas’s “broad holding” beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 [“Dueñas is distinguishable.”].)

B. The court did not violate appellant’s constitutional rights.

Even if Dueñas is applicable here, we reject any argument that the trial court violated appellant’s constitutional rights. The Dueñas defendant presented compelling evidence that the imposed assessments resulted in ongoing unintended punitive consequences. The Dueñas court determined that these unintended consequences were “fundamentally unfair” for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted that the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated that “[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that ‘[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.’ [Citation.]” (Dueñas, supra, at p. 1171, fn. 8.)

Both People v. Hicks (2019) 40 Cal.App.5th 320, review granted September 14, 2019, S258946 (Hicks) and this court’s opinion in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles) have strongly criticized Dueñas’s analysis. (Hicks, supra, 40 Cal.App.5th at p. 322, review granted; Aviles, supra, 39 Cal.App.5th at pp. 1059–1060.) We agree with those criticisms. (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [finding Hicks to be “better reasoned” than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at p. 928 [“In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant’s ability to pay before imposing court assessments or restitution fines.”].)

This court in Aviles held that, in contrast to a due process challenge, the “ ‘excessive fines’ ” clause in the Eighth Amendment to the United States Constitution was a more appropriate avenue for an indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts, Aviles found no constitutional violation for the imposition of assessments and fines imposed on a felon who, after fleeing from officers, shot and wounded two of them. (Id. at pp. 1059–1060.) Aviles also concluded that any presumed error was harmless because the felon had the ability to earn money while in prison. (Id. at pp. 1075–1077.)

The Hicks court held that, in contrast to Dueñas’s application of due process, a due process violation must be based on a fundamental right, such as denying a defendant access to the courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas’s analysis was flawed because it expanded due process in a manner that grants criminal defendants a right not conferred by precedent; that is, an ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325–326, review granted.) Under its facts, Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329–330.)

1. Appellant’s due process rights were not violated.

In this matter, the fees, fines and assessments imposed against appellant do not implicate the traditional concerns of fundamental fairness. Appellant was not denied access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18–20 [due process and equal protection require a state to provide criminal defendants with a free transcript for use on appeal]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) Appellant was not incarcerated because he was unable to pay prior fees, fines or assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672–673 (Bearden) [fundamental fairness is violated if a state does not consider alternatives to imprisonment if a probationer in good faith cannot pay a fine or restitution]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.)

The unique concerns addressed in Dueñas are lacking here. Nothing establishes or even reasonably suggests appellant faces ongoing unintended punitive consequences. Appellant does not establish how he suffered a violation of a fundamental liberty interest. Because unintended consequences are not present, it was not fundamentally unfair for the court to impose the fees, fines and assessments in this matter without first determining appellant’s ability to pay. As such, the trial court did not violate appellant’s due process rights, and this claim fails. (See People v. Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329, review granted.)

2. The restitution fine was not grossly disproportionate under the Eighth Amendment.

Appellant asserts that the minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)) violates the excessive fines clause of the Eighth Amendment. We disagree.

“The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) “The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: ‘(1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1070.) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337–338.)

According to Bajakajian, two considerations are particularly relevant in deriving a constitutional excessiveness standard. First, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” (Bajakajian, supra, 524 U.S. at p. 336.) Second, “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents.” (Ibid.)

When appellant entered his plea in this matter, it was stipulated that a factual basis for the plea existed in the report from law enforcement. The sheriff department’s “field case report” establishes that a deputy made a traffic stop and detained appellant, who had been speeding and committing other violations. Appellant admitted he was on probation. Deputies discovered a “large amount” of methamphetamine on the legs of appellant’s passenger. Appellant had a “large amount” of U.S. currency in his pockets. In addition to some weapons and two tasers, a search of the vehicle revealed a “large quantity of suspected methamphetamine, packaging, a glass smoking methamphetamine pipe, a hypodermic syringe, U.S. Currency, and a scale .…”

We must give deference to the Legislature’s determination regarding the appropriate punishment. (Bajakajian, supra, 524 U.S. at p. 336.) When the relevant factors are examined, it is abundantly clear that the $300 minimum restitution fine imposed against appellant was not “grossly disproportional” under these circumstances. (Id. at p. 334; see also Aviles, supra, 39 Cal.App.5th at p. 1072; People v. Gutierrez, supra, 35 Cal.App.5th at pp. 1040–1041 (conc. opn. of Benke, Acting P.J.).) As such, we reject appellant’s assertions that the excessive fines clause of the Eighth Amendment was violated.

3. The assessments did not violate appellant’s rights to equal protection under the law.

Appellant contends that imposition of the assessments under section 1465.8, subdivision (a)(1) and Government Code section 70373, subdivision (a)(1), violated his rights to equal protection. He relies on Dueñas for this claim. We find appellant’s equal protection claim unpersuasive. We have already concluded that Dueñas is distinguishable from the present matter and we will not apply it here. In any event, Dueñas based its holding on due process grounds, and not on equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4.) Four opinions are instructive in resolving this claim.

First, in Williams v. Illinois (1970) 399 U.S. 235 (Williams), the United States Supreme Court invalidated on equal protection grounds a facially neutral statute that authorized imprisonment for an indigent’s failure to pay fines. (Id. at pp. 241–242.)

Second, in Tate v. Short (1971) 401 U.S. 395 (Tate), the United States Supreme Court expanded upon Williams. The Tate court held that equal protection was violated when an indigent defendant was committed to a “municipal prison farm” because he could not pay accumulated fines of $425 based on nine convictions for traffic offenses. (Tate, at pp. 396–397.) The high court noted that the defendant “was subjected to imprisonment solely because of his indigency.” (Id. at p. 398.) Important to the issue before us, the Tate court commented that a state has a “valid interest in enforcing payment of fines.” (Id. at p. 399.) According to Tate, a state “is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.” (Ibid.) The high court stated that “ ‘numerous alternatives’ ” existed for a state to avoid “imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs.” (Ibid.) However, those alternatives were left for the states to explore. (Id. at p. 400.)

Third, in In re Antazo (1970) 3 Cal.3d 100, the California Supreme Court held that an indigent defendant could not be imprisoned for failure to pay a fine. Otherwise a violation of equal protection would occur based on wealth. (Id. at pp. 103–104.) Importantly, our high court stated that imposing a fine and penalty assessment on an indigent offender did not by itself necessarily constitute a violation of equal protection. Apart from imprisonment, alternatives exist that could permit an indigent offender to be fined. (Id. at p. 116.)

Finally, in Bearden, supra, 461 U.S. 660, the United States Supreme Court held that a court may not revoke probation for an indigent defendant’s inability to pay a fine and restitution, absent evidence and findings that the defendant was responsible for the failure or that alternative forms of punishment were inadequate. Otherwise, the “deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” (Id. at pp. 672–673.) The high court, however, reiterated that a state is not powerless to enforce judgments against those financially unable to pay a fine. (Id. at pp. 671–672.) Bearden also noted that, when a defendant’s indigency is involved, due process provides a better analytic framework than equal protection because “a defendant’s level of financial resources is a point on a spectrum rather than a classification.” (Id. at p. 666, fn. 8.) In the same footnote, Bearden stated that “[t]he more appropriate question is whether consideration of a defendant’s financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process.” (Ibid.)

In both Williams and Tate, the United States Supreme Court strongly suggested that the imposition of a fine on an indigent defendant did not by itself violate equal protection. In In re Antazo, our high court made it clear that a court may impose a fine or penalty on an indigent offender so long as the state offers alternatives to imprisonment for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.) The Bearden court cautioned that a due process approach, and not equal protection, is more appropriate when “confronting the intertwined question of the role that a defendant’s financial background can play in determining an appropriate sentence.” (Bearden, supra, 461 U.S. at p. 666, fn. 8.)

In light of Williams, Tate, In re Antazo and Bearden, it is clear that appellant was not denied equal protection. He was not incarcerated because of his alleged poverty. He does not articulate how a fundamental liberty interest was implicated. Thus, the trial court was permitted to impose a fine or penalty on him so long as alternatives to imprisonment are offered for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.)

Based on this record, the trial court did not violate appellant’s constitutional rights when it imposed the disputed fees, fines and assessments without determining appellant’s ability to pay them. Accordingly, appellant’s arguments are without merit, and this claim fails.

DISPOSITION

The judgment is affirmed.